Jarrad v Santamaria (No 2) - [2006] SASC 117

Supreme Court of South Australia
(Civil: Application)
JARRAD v SANTAMARIA & ANOR (No 2)
Judgment of The Honourable Justice Gray (ex tempore)
12 April 2006
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES
Application for leave to appeal to Full Court against decision allowing an appeal against a costs order of a magistrate - application for extension of time within which to apply for leave to appeal - application for extension of time granted given that delay was caused by applicant's solicitor - application for leave to appeal refused.
Summary Procedure Act 1921 (SA) s 189(2)(a), referred to.
Jarrad v Santamaria and Anor [2005] SASC 196, considered.

JARRAD v SANTAMARIA & ANOR (No 2)
[2006] SASC 117
Civil
GRAY J

This is an application brought by the first respondent, Antonio Santamaria, for leave to appeal to the Full Court against a decision allowing an appeal against a costs order of a magistrate.
The rules of court require that there be an application for leave to appeal. There is no right of appeal. The application for leave must be made to the judge against whose order the complaint is made in the first instance. Mr Santamaria now seeks an extension to bring an application for leave.
On 31 May 2005, I allowed an appeal brought by the appellant, Andre Jarrad, against a costs order of a magistrate arising from proceedings in which Mr Santamaria and his wife sought a restraining order against Mr Jarrad.[1] On the basis of supporting affidavits sworn by the Santamarias, the magistrate initially made an ex parte order restraining Mr Jarrad from making any form of contact with the Santamarias and their children. That ex parte order subsequently came on for consideration inter partes. The restraining order was not confirmed at trial.
[1] Jarrad v Santamaria and Anor [2005] SASC 196.
Mr Jarrad applied to the magistrate for costs pursuant to section 189(2)(a) of the Summary Procedure Act 1921 (SA) on the basis that the Santamarias had acted in bad faith and unreasonably in bringing the ex parte proceedings. The magistrate rejected the application. Mr Jarrad appealed to this Court against the costs order.
On 14 June 2005, a notice of appeal to the Full Court was filed on behalf of Mr and Mrs Santamaria by their solicitor. The notice was filed within time for an application for leave but without leave of the court as required by the rules of court. The notice was not served on the solicitor acting for Mr Jarrad.
On 6 April 2006, a judge of this Court dismissed the notice as incompetent as no leave to file the notice was sought or given in time. On that occasion, the judge also dismissed an earlier application made by Mr Santamaria for an extension of time within which to apply to set down the appeal on the basis that it was incompetent. The judge also ordered that Mr Santamaria pay Mr Jarrad’s costs of the hearing.
As this present application for leave to appeal was bought some months out of time, it was accordingly accompanied by an application for an extension of time within which to apply for leave to appeal. It transpired that the underlying cause of the delay in bringing the application for leave occurred at the hands of Mr Santamaria’s solicitor. In his affidavit filed in support of his application, sworn on 6 April 2006, Mr Santamaria has stated the following by way of explanation for the delay:
The reason I’m applying for an extension of time for leave to appeal from the decision of Gray J is because I paid a solicitor and instructed him to appeal the decision which he had told us he had done. I accidentally found out whilst inquiring about another matter that the solicitor had failed to lodge the appropriate documents in the required time. I instructed him to do so again in February 2006. He told me he would but failed to do so. I’ve lodged a notice of appeal to the Full Court.
Although Mr Santamaria’s solicitor did lodge the notice of appeal within time, he did so without making any application for leave to appeal as required by the rules. Moreover, having lodged the notice, it appears as though, despite repeated inquiries by his client as to the progress of the matter, the solicitor failed to take any or adequate steps to ensure the matter was progressing. I have had no evidence before me from the solicitor but, as previously stated, a purported notice of appeal was filed by the solicitor without the obtaining of leave.
In all the circumstances, I accept that Mr Santamaria has not been responsible for the delay. An order extending time is appropriate. It would be unfair to prejudice Mr Santamaria by the events that have occurred. Accordingly, there will be an extension of time within which to seek leave to appeal.
Turning now to the application for leave to appeal. Rather than have a formal application lodged, I acceded to Mr Santamaria’s request that the notice of appeal lodged by his solicitor on 14 June 2005 stand as his application for leave.
The court’s practice has been to grant leave to appeal only if a question of general principle arises. Usually the court also considers whether there is reason to doubt the correctness of a decision under consideration. However, in the end the court must act as the interests of justice may require.
On the hearing of the application, Mr Santamaria raised a number of factual considerations that he wished to agitate. He complained that assertions made by counsel for Mr Jarrad were incorrect. In particular he contended that it was wrong for counsel to have suggested that he and his wife did not attend to mediate the matter.
Mr Santamaria also drew attention to [15] of my judgment[2] where 11 examples of inconsistencies between the affidavits of the Santamarias and their evidence at trial were set out. Mr Santamaria raised concerns in regard to four of those examples. In respect of several matters, his complaint was that the solicitor preparing the Santamaria affidavits had misunderstood the instructions and that was the cause of the apparent differences. In regard to the other issues, his complaint was that when the evidence given at trial was properly considered, it was not as clear-cut as has been suggested in my reasons for judgment. Rather than the witness simply not supporting the affidavit account at all, it was suggested that there was evidence both ways.
[2] Jarrad v Santamaria and Anor [2005] SASC 196.
None of these matters warrant a grant of leave. They relate to discrete factual matters. No point of general principle arises. The interest and administration of justice do not call for a grant of leave.
The application for an extension of time within which to bring an application for leave to appeal to the Full Court is granted. Time is extended until today.
I order that the notice of appeal (being document 4 on the Supreme Court file) be treated as Mr Santamaria’s application for leave. Leave to appeal is refused.